“Originalism” and Justice Scalia, Part 1: The Eighth Amendment
An Intellectually Bankrupt, Judicially Activist, Outcome-Driven Philosophy
Although much of my public writing is aimed at more practical legal matters – like whether or not to use form legal services – from time to time, I’ll also weigh in on public matters that have a legal dimension. Right now, the big issue is the death of Supreme Court Justice Antonin Scalia.
There’s a story that seems to have developed after the wake of Justice Scalia’s death. “Scalia adhered to originalism, which is an academically honest way of interpreting the Constitution despite the fact that it sometimes produces undesirable results.” I think this story is a version of the aphorism you’ve all heard, “if you’re not a liberal by age 20, you have no heart; if you’re not a conservative by age 40, you have no head.” It pits intellectual honesty and rigor on one side and compassion on the other.
It’s also completely false.
Justice Scalia’s “orginialism” deifies the intent of people who never intended for their intent to be treated in such a fashion. It was also, in my view, completely political. In an overwhelming majority of cases, I think Scalia very clearly reasoned backwards from the hard-right conservative result that he wanted to reach in order to find a justification for getting there. Moreover, Justice Scalia’s originalism was also judicial activism in the sense that his most influential decisions overturned even long-standing judicial precedent in favor of hypothetical arguments grounded in the 17th and 18th centuries. Justice Scalia’s originalism was, in short, everything he accused otherjustices of practicing: a nakedly partisan method to use the Supreme Court as a political vehicle to advance politically conservative causes.
That’s a big charge, I know, and it can’t be fully explained in a single blog post. So let’s start with a relatively straightforward case: the Eighth Amendment to the Constitution. It says, in full:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Now, what does “cruel and unusual punishment” mean? When I ask people, they tend to use phrases like “unfair,” “disproportionate,” “arbitrary,” and “mean.” Using medieval torture devices would be cruel and unusual punishment. So would starving inmates, or forcing them to participate in “Fight Club”-style arena bouts for the amusement of others. There’s also a sense that the Eighth Amendment protects us from having courts where judges can arbitrarily sentence defendants to long, painful sentences for committing minor crimes.
As it turns out, this intuition that people tend to have actually tracks pretty closely to the history of the actual phrase in Constitutional law. Here’s what Supreme Court Justice Lewis Powell said in 1983, writing for the majority in Solem v. Helm, 463 U.S. 277 (1983):
In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. … [A] single day in prison may be unconstitutional in some circumstances.
In that case, the defendant, Helm, was convicted of passing a bad check for $100. Under South Carolina’s “three strikes” rule, he was sentenced to life imprisonment without the possibility of parole – the state’s highest penalty at the time. Both the appellate court and the Supreme Court determined that this kind of disproportionate sentence violated the Eighth Amendment. In so doing, the Supreme Court explained that the Eighth Amendment’s “cruel and unusual punishment” reflected a kind of moral principle that prohibited imposing sentences that were disproportionate to the crime committed. Id. at 303.
This interpretation not only tracks our common-sense understanding of the phrase, but is also consistent with generally accepted principles of legal interpretation, and even with the historical context of the Eighth Amendment, which was enacted as a backlash to the excesses of the “Star Chamber” practices in England that gave rise to the 17th Century English Bill of Rights. (Be sure to click through on that first link; it’s to a piece by the arch-conservative Federalist Society that nevertheless recognizes the historical origins of the Eighth Amendment.) Liberal, moderate, conservative: we all agreed that the Eighth Amendment prohibited imposing grossly disproportionate sentences upon defendants, particularly non-violent ones. Right?
Right! That is, until Justice Scalia came along. Just seven years after the Court’s ruling in Solem v. Helm (and three years after Scalia’s unanimous, 98-0 appointment to the Court), the Supreme Court heard another Eighth Amendment case, Harmelin v. Michigan, 501 U.S. 957 (1991). On the facts, it was essentially identical to the Solem v. Helm decision: the defendant was convicted of a non-violent felony – in this case, possession of 672 grams of cocaine for personal use – and, because of Michigan’s “three strikes” law, he was sentenced to life imprisonment without the possibility of parole.
Some of you might think that writing a bad check for $100 is worse than being caught with a baggie of coke. Some may think it’s the other way around. But I imagine that pretty much all of you would agree that both crimes are more similar to each other than they are to first-degree murder, or treason, or aggravated rape, or other serious, violent felonies for which offenders are sentenced to spend the rest of their days in prison.
Justice Scalia saw it quite differently. Here, I’ll let him put it in his own words:
Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history. As noted earlier, mandatory death sentences abounded in our first Penal Code. They were also common in the several States — both at the time of the founding and throughout the 19th century. … There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.”
In other words, Scalia decided to interpret the Eighth Amendment literally, as though the words were written in Boolean logic and therefore only forbade punishments that were both inherently cruel and “unusual in the Constitutional sense.” In over 200 years of cases, no American court had ever imposed that sort of test, and nothing in our nation’s (or England’s) history suggested that anyone ever thought that’s what “cruel and unusual punishment” meant. Justice Scalia’s test was also certainly incompatible with the Court’s prior dictum that “a single day in prison may be unconstitutional in some circumstances.” Under Scalia’s view – and I am not being hyperbolic here – elaborate torture devices such as breaking prisoners on the wheel would be permissible, so long as they were in relatively widespread use in the 18th century in the United States (as they were).
So this represents Exhibit A in my argument that Scalia’s “originalism” was simply wrong. In the case of Harmelin, I think it amounted to little more than an excuse to reach the end Scalia wanted to achieve: upholding Michigan’s “three strikes” law, even if that meant overturning the prior Supreme Court’s holding in Solem v. Helm. That’s the definition of “judicial activism.” And if you search through his thirty years’ of judicial decisions, you will not find a single case in which Justice Scalia held that the Eighth Amendment forbade any particular punishment, because under the Harmelin standard, the only things that count as cruel and unusual punishments are, by definition, the kinds of punishments that are never actually imposed by courts. (You will also find Scalia on the public record as stating that even torture doesn’t violate the Eighth Amendment, because torture “isn’t a punishment,” but rather a means of gathering information.)
There’s no conflict between heart and head: Scalia’s “originalism” is intellectually wrong andproduces morally awful results.